State v. Kingsbury

• Decision Date: 10 April 1928
• Docket Number: 21058.
• Parties: STATE v. KINGSBURY.
• Court: Washington Supreme Court

266 P. 174

147 Wash. 426

STATE v. KINGSBURY.

No. 21058.

Supreme Court of Washington

April 10, 1928

Department 2.

Appeal from Superior Court, Spokane County; Charles L. Leavy, Judge.

Howard Kingsbury was convicted of being a jointist and of having liquor in possession with intent to sell, and he appeals. Affirmed.

Edward M. Connelly and Turner, Nuzum & Nuzum, all of Spokane, for appellant.

Chas W. Greenough and Frank Funkhouser, both of Spokane, for the State.

MAIN J.

The information in this case contains two counts. The first charges the defendant with being a jointist, and the second with having liquor in possession with intent to sell. The trial resulted in a verdict of guilty upon both counts, and the defendant was sentenced upon both. From the judgment entered upon the verdict, the defendant appeals.

The appellant on March 17, 1927, and for some time prior thereto had operated a tire shop in the city of Spokane. On this day as shown by the evidence offered by the state, he made three sales, out of his shop, of moonshine whisky, all of which were to the same person. One purchase was made during the afternoon, another about 8 o'clock in the evening, and the third a little later. After the last purchase the shop was searched and three or four bottles of moonshine whisky were found in a cache in a secret compartment in a desk in the place. The appellant was thereupon arrested, charged, and tried, as above stated.

Upon the trial there was introduced in evidence a transcript of the docket of the justice of the peace showing a prior conviction of the offense of liquor in possession with intent to sell. This transcript, under the heading 'Witnesses sworn and examined on behalf of plaintiff,' recites, '3 1/2 gallons moonshine whisky in evidence.' When the transcript was offered, the appellant objected to this matter with reference to the moonshine whisky going in evidence, and the court first ruled that that part would not be submitted to the jury. Later the ruling was changed and the entire transcript went in evidence. This presents the question whether it was error to introduce that part of the transcript which recited the evidence. The other parts of the transcript show, as stated, that the appellant was there adjudged guilty of the offense of liquor in possession with intent to sell. This fact alone would give rise to the reasonable inference that he had some liquor in his possession; otherwise, he would not have been adjudged guilty. Section 7339, Rem. Comp. Stat., in part, provides that:

'Every prosecuting attorney, and every justice of the peace, having knowledge of any previous conviction or convictions of any person accused of violating this act, shall in preparing a complaint, information or indictment, for subsequent offenses, allege such previous conviction or convictions therein, and a certified transcript from the docket of any justice of the peace, or a copy of the record of any court of record, certified by the clerk thereof under the seal of the court, shall be sufficient evidence and proof of such previous conviction or convictions.'

Here is an express direction to the prosecuting attorney to allege the previous conviction, if there be one, in the information and the docket of the justice of the peace properly certified shall be sufficient evidence thereof.

Section 1770, Rem. Comp. Stat., sets out what the docket of the justice of the peace shall contain. It is there provided that:

'Every justice of the peace shall keep a docket in a well-bound book, in which he shall enter.----

'1. The title of all actions commenced before him;

'2. The object of the action or proceeding, and if a sum of money be claimed, the amount of the demand;

'3. The date of the notice and the time of its return; and if an order to arrest the defendant be made, the statement of the facts on which the order is issued; * * *

'14. And such other entries as may be material.'

The omitted provisions, as indicated by the asterisks, can have no possible bearing upon the present inquiry. It will be noticed that the fourteenth subdivision authorized the entering in the docket in addition to those specifically mentioned matters which may be material. In State v. Dericho, 107 Wash. 468, 182 P. 597, it was held that where a prior conviction was alleged this presented a question of fact for the jury. In State v. Dale, 110 Wash. 181, 188 P. 473, it was held that where a previous conviction was alleged and proved, this entered into and became a part of the second or aggravated offense. Since the statute authorizes the justice to enter in his docket any matter that may be material, and since the previous conviction enters into and becomes a part of the aggravated offense, it cannot be said that the recital of 3 1/2 gallons of moonshine whisky in evidence in the transcript of the justice docket is so far immaterial as to constitute prejudicial error. If the transcript had recited one-half pint of moonshine whisky in evidence, it would hardly be claimed that this was prejudicial in view of the fact that the appellant was in that proceeding adjudged guilty of liquor in possession with intent to sell. It may be that there could be a recital in the transcript of the justice docket so far immaterial and prejudicial that it should not be received in evidence, but this case does not present that situation.

The next question is whether it was error for the state to offer in evidence a bottle of moonshine whisky which was taken from a person in the shop at the time of the appellant's arrest. This bottle was not received in evidence. The mere offer and rejection of it does not furnish a basis for a holding that this was prejudicial error. Especially is this true when the offer of this particular bottle was taken into consideration with all the other bottles of evidence that were properly presented and received in evidence.

The next question is whether there was error in receiving in evidence two silver dollars which were given by the police officers to one Robert Van Paine and with which the last purchase above mentioned was made. Two of the...